Inside Criminal Justice

After Kerlikowske, What’s Next for America’s ‘War on Drugs’?

“No one is happy with American drug policy,” Peter Reuter of the University of Maryland declares in a new overview of a debate that hasn’t changed dramatically in the last three decades.

Reuter’s assessment (“Why has American Drug Policy Changed so Little in 30 years”) appears in a sweeping review of U.S. criminal justice published this month: Crime and Justice in America, Volume 42, 1975-2025, University of Chicago Press, 2013)

With the U.S. government awaiting a new “drug czar”—President Barack Obama has nominated current National Drug Control Policy Director R. Gil Kerlikowske to head the federal border protection agency—The Crime Report takes a look at Reuter’s views in some detail.

The following summarizes Reuter’s principal arguments, but also includes new material not included in his original essay. The entire book can be ordered here.

Reuter believes drug policy is caught in an ideological divide.

As he puts it, Liberals call it “overly punitive, racially unjust, extremely expensive, and, to boot, ineffective.” Conservatives say the problem is “awful, but any change other than increasingly vigorous enforcement is a slippery slope to legalization— an anathema in their view.

However, in 2013, some promising signs of change have emerged.

Observing that in fact the drug problem has “changed substantially over the last 40 years.” Reuter writes. “After rapid growth in the number of dependent users of various problematic drugs from about 1967 to 2000, drug use and dependence have been in decline; the same is true for associated violence and public disorder.”

Reuter makes five major assertions:

Marijuana must be treated separately as a social and criminal justice problem. It hardly touches the central problem of American criminal justice—the high incarceration of minorities—nor does it cause significant health and social harms.

Harm reduction, the idea that governments should pay attention to the harmfulness of drug use (not just to the number of users of drugs) is a big idea that has importantly changed drug policy in much of the Western world. In the United States, among the core harm reduction programs, only methadone maintenance has been accepted.

Legalization, the idea that drugs such as cocaine and heroin should be treated like alcohol and be made available legally under substantial regulatory restrictions, deserves separate discussion. Though Reuter argues it has no appeal to the general public, it attracts a great deal of interest from the educated elite and from some Latin American presidents.

The prevalence of drug use, the most widely reported measure of drug problems, is not a good target for drug policy. Policy should be oriented toward reducing violence, dysfunction, and disease related to drug use and to reducing the use of incarceration and reducing racial disparities in incarceration.

The Arc of Drug Policy to 2010

Reuter offers a detailed history of federal antidrug policy in recent decades.

Most recently, Obama has been silent on the subject, though Reuter notes that the rhetoric of his administration has distinctly softened.

Not only has drug policy director Kerlikowske eschewed the “war on drugs” terminology, he has actively promoted more humane approaches to drug problems; there is, however, little evidence yet that this has affected how federal antidrug programs are implemented.

The Obama administration did successfully battle with Congress to reduce the federal crack-cocaine powder sentencing disparity from 100-to-1 to 18-to-1.

Marijuana is different.

It dominates many statistical series, such as drug arrests, numbers of users, and even dependent users and treatment episodes. It is the only illegal drug whose use is a routine event of growing up in America, as it is in many other Western nations. Simple possession of marijuana has accounted for about half of all drug arrests since the late 1990s.

However, marijuana probably contributes less than 5 percent to the numbers actually incarcerated for drug offenses, and these are almost exclusively in local jails for pretrial detention.

What drives the increase in support for marijuana legalization over the last decade, Reuter asks?

Medical marijuana initiatives may well have prepared the way for the successful ballot initiatives for legalizing the drug by making the drug less of a fringe and suspect substance.

If it is medicine, then just how dangerous can it be?

The medical initiatives have always been presented by drug warriors as mere stalking horses for legalization. They are probably correct. Last year, legalization initiatives were presented to voters in Colorado and Washington. Both passed with approximately 55 percent of the ballots cast.

Research on marijuana use and policy has consistently emphasized that the drug is indeed addictive and harmful— and also that the effects on the prevalence of use, of criminalization, of possession, and of high arrest rates are slight. The federal government has been relentless in its opposition to either medical marijuana or legalization.

It took the Department of Justice over nine months to come out with a policy statement on how it would respond to the Colorado and Washington legalization initiatives. Its stance could reasonably be described as mildly tolerant, apparently allowing the states to grow and distribute the drug if carefully regulated, particularly with respect to inter-state distribution.

One further consideration underlined by Reuter: like alcohol in the early 1930s and various forms of gambling from about 1970 to 2000, marijuana looms as an attractive source of tax revenues for state governments that have been in chronic fiscal trouble since 2008.

Demonizing Drugs

The story is very different for cocaine, heroin and methamphetamine, the principal drugs of concern. There has been a ritualized demonization of each drug as it appears, in which it is characterized as far worse than any of its predecessors, followed by a lengthening of the maximum sentences specified in federal and many state codes.

Over time, problematic users are gradually transformed in prevailing stereotypes from violent and predatory youngsters to ailing, disgusting, and ultimately pathetic middle-aged street bums, Reuter says. While the criminal justice system does not adapt to the change in perceptions it keeps locking up offenders for increasingly long periods.

The policy debate is generally restricted to critiques of sentencing and to calls for increased emphasis on prevention and treatment.

Research on treatment has shown evidence of effectiveness. The evidence is strongest for opiate substitution treatment, which involves regular provision of drugs such as methadone or buprenorphine, which are themselves opiates but provide lower and more extended psychoactive effects.

What is striking is that most individuals under treatment continue to use drugs, but they use less of them and the use causes less harm to themselves and others. Measured prevalence, the percentage of the population using each drug, hardly changes.

Contrary to the assumptions of many policymakers, there is very little evidence that enforcement can raise prices or reduce availability, the mechanisms through which it might reduce the prevalence of use. During a period of massively increased enforcement intensity (1980-2008), the retail prices of heroin and cocaine both fell about 70 percent.

If drug policy cannot affect prevalence, what can it do?

We do know, writes Reuter, that bad policy choices can make drug use, drug distribution and production more harmful. For example, if the police choose to use possession of prohibited syringes as the basis for targeting heroin injectors, they may accelerate the spread of HIV.

Crackdowns on retail markets may lead to more youths becoming involved in drug selling; the unintended negative consequences of drug policy are numerous and serious.

Big Ideas

Notwithstanding the general stagnation of drug policy, a few important ideas have become part of the emerging debate over the past decade. Many observers believe that some or all can potentially address America’s drug abuse and the illegal narcotics trade, or both.

(1) Harm Reduction

Needle exchange is the iconic program of the harm reduction movement. Originating in Europe, where the threat of HIV among needle sharing heroin addicts had become serious, the principle was straightforward. Policy could target the harmfulness of drug use, not just its extent. There is considerable empirical backing for claims that needle exchange programs can bring about significant reductions in HIV transmission.

Yet only 211 needle exchange programs were operating in the United States in 2011 because prescription laws, paraphernalia laws, and local “drug-free zone” ordinances banned or constrained needle exchange programs in most of the country.

(2) Redefining Addiction

Another possibly important idea is the federal identification of drug addiction as a brain disease. Despite some fundamental empirical problems, this idea appears to provide an important platform for policy reform efforts, within the context of drug prohibition.

In an increasingly therapeutically oriented society, this is a credible basis for sending criminally active addicts to treatment rather than to the criminal justice system.

(3) Legalization

Hanging over all discussions of drug policy is the widespread belief among intellectuals that until drugs are made legal, there cannot be sensible policies; we should regulate rather than prohibit. The arguments for legalization are at first glance compelling.

Almost all the costs associated with prohibited drugs in contemporary society (overdoses, blood-borne viruses, corruption, violence, and property crime) are a consequence of prohibition and its enforcement rather than the drugs themselves. Thus the elimination of prohibitions would greatly reduce these problems.

The difficult question is how much use and addiction would increase if drugs were legal and regulated. It is impossible to project even roughly how much prevalence of use or dependence would increase. Heroin addiction might increase only 50 percent or it might increase by as much as 500 percent; there is no compelling evidence, according to Reuter,that would allow one to choose a particular figure.

It is impossible to know how to weigh increased addiction against the gains in terms of reduced crime, disease, and so forth. Whether the U.S. would benefit from legalization would be difficult to show. This inability to make more than a theoretical case has been a major handicap.

(4) Drug Courts

A more programmatic innovation, drug courts hold considerable appeal to the treatment and public health communities because they offer the possibility of closer coordination between the criminal justice system and the treatment providers who serve the same offending populations.

They appeal to the defense bar and to advocates of less punitive drug policies who wished to support credible alternatives to incarceration. Unfortunately, the advocates for these courts have been so concerned to show that such courts can be effective that they have accepted eligibility restrictions that make drug courts still a minor innovation, handling fewer than 10 percent of the potentially eligible defendants.

Thus it is unlikely that, as currently structured, drug courts will have much impact on the number of drug users incarcerated. Prison and jail populations have grown rapidly through 2005, but they have aged at least since about 1990. Unless drug courts are restructured to serve riskier clients, they will not have much impact on the number of drug users in American prisons and jails

Emerging Problems

The drug problem changes in unforeseen ways with occasional epidemics that are unpredictable in their occurrence and magnitude. For example, the use of diverted prescription drugs constitutes a significant and disturbing public health problem.

The appropriate policy response is almost certainly different than for the wholly illegal drugs discussed so far, argues Reuter. For example, since these drugs are primarily produced and distributed through legally regulated entities, there is the possibility of at least partly effective suppression without much enforcement against street markets, which generate so much of the incarceration and violence around distribution of the illegally produced drugs.

There also is the ever-present fear of entirely new drugs appearing on the market—producing so called “legal highs” —with the expectation that some new psychoactive substance developed by “backyard chemists” will become a major new drug problem. This turns out, surprisingly, to be a very modest problem to date, says Reuter; but it is hard to understand why, and this cannot be dismissed as a future threat.

The nation’s illegal-drug problem is shrinking.

The populations dependent on cocaine, heroin, and methamphetamine are declining and aging; relatively few of those who experiment with these drugs now go on to become dependent users, even though prices have fallen substantially.

The explosion of drug-related violence in Mexico since 2006 may change American attitudes toward the drug problem. Colombia, Mexico, and Central America are now seen as victims of America’s drug habit rather than as villains that profit from it.

Optimistically, this will generate a reexamination of whether current policies that cause so much harm to other nations can be defended.

There is indeed one important change in process. The Affordable Care Act (ACA) provides access to treatment services for an important population of drug addicts who previously had no or very limited access.

The severity of sentencing for drug offenses is at the heart of the liberal critique of current drug policy. Indeed, last August’s speech of Attorney General Eric Holder to the American Bar Association making just that point—and the lack of a strong conservative rebuttal— suggests that there might be considerable agreement that a less harsh sentencing regime is needed.

Until now it has proven exceptionally difficult to accomplish any meaningful change.

Rolling Back the ‘Drug War’

This can be illustrated in the efforts to roll back two widely acknowledged excesses: the discrepancy between federal court sentences for crack cocaine and powder cocaine, and the Rockefeller drug laws in New York State that imposed heavy sentences on minor drug offenders.

Both were lengthy and bitter fights, at the end of which the advocates for reform accomplished far less than they had aimed for and still left in place indefensible sentencing regimes.

Why has U.S. drug policy been so inflexible over the period 1980-2010?

One reason cited by Reuter is popular attitudes. The American public became fearful of drugs in the 1970s and 1980s, with the heroin epidemic, two separate cocaine epidemics (powder and then crack), and the associated crime. The connection between drugs and crime was real, and violent crime was at its worst during the 1980s.

It is not surprising that there is popular resistance to major changes in policy toward illegal drugs, fueled by a suspicion that anything other than tough enforcement of tough laws will be insufficient to protect society from a return to the horrible 1980s, with their bloody battles between drug-selling gangs.

A second factor is general policy inertia.

There is one hopeful sign at this level: a shift in conservative views about the desirability of continued growth of incarceration. Between 2007 and 2011, strains on state and local budgets plus a great deal of hand-wringing about excessive federal deficits, contributed to the shift. So did the overcrowding and dangerousness of prisons, particularly in California, which have become a staple of the media and of federal judicial decrees. Actual incarceration has declined slightly.

The third factor, and the most common explanation for the stasis, particularly at the federal level, is the timidity of politicians.

It is routinely asserted that no politician wants to be seen to be soft on crime, and drugs are equated in the public mind with crime. It is easy rhetorically to claim that any softening of the severe sentences imposed on drug dealers, who account for the vast bulk of drug offenders in prison is a move toward undue leniency and would worsen the drug problem.

The counter to that is a statement that actually there is no evidence that lighter sentences would make drugs more available or cheaper. However, that statement is not very convincing to the public.

Reuter argues that the stasis is a consequence of the fact that the problem has been declining. Why risk change when existing policies are working?

There are lots of good answers to that: the policies are expensive, divisive, and intrusive.

“Pessimism has proven a consistently good predictive stance for drug policy analysts for thirty years,” he explained in a separate email to The Crime Report. “Drug problems might improve but the policy and programs changed very little.

“There are signs now that finally there is space for innovation, that drug policy is no longer a holy war but is just another effort by society to manage a chronic problem. The Attorney General’s speech in August is less important for its substantive proposal for its rhetoric and the wide support that it received across the political spectrum.

“Gil Kerlikowske may have helped lay the groundwork for this by his obvious decency and understanding that drug dependence is an extraordinary challenge for many of those afflicted.

“A little optimism is in order for once.”

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. He welcomes comments from readers.

An informative essay! I learned criminology at the University of Pennsylvania with one of the most important American criminologist. There is only one logical answer to the drug problem: Take criminal law out of it. Drug use might be a psychological or medical problem – so it calls for intervention of treatment people …. but not for intervention by criminal law, police, prosecutors, courts … Criminal law does nothing but it keep up the prices. Criminal law makes involvement in the drug market profitable ! Legalizing does not mean welcoming and bringing the hail to the world – we see this with alcohol. No one reasonable will punish alcohol production and consumption. Yes, some people get damaged – but compare this with the mega-damage that is caused by involving criminal law in the “war on drugs”……